Citation Nr: 9932235
Decision Date: 11/15/99 Archive Date: 11/29/99
DOCKET NO. 95-14 019 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
in Fort Harrison, Montana
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
INTRODUCTION
The veteran had active service from November 1967 to July
1969. He had over 13 months of service with the United
States Army, Pacific, which included time in Vietnam. His
military occupational specialty was as a field artillery man.
This case was previously before the Board of Veterans'
Appeals (Board) in March 1998 at which time it was remanded
to the Department of Veterans Affairs (VA) Medical and
Regional Office (RO) in Fort Harrison, Montana, for further
development. The case has been returned to the Board for
appropriate action.
FINDINGS OF FACT
1. There is no credible evidence of record to establish that
the veteran experienced the claimed inservice stressors so as
to support a clear diagnosis of PTSD.
2. The RO has fully discharged the duty to assist the
appellant and the inability to obtain further important
evidence is solely due to the lack of cooperation on the
claimant.
CONCLUSION OF LAW
The veteran is not shown to have PTSD due to disease or
injury that was incurred or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R.
§§ 3.655, 4.126 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
A review of the evidence of record reflects that the veteran
served in Vietnam from May 1968 to July 1969. While in
Vietnam he was assigned to C Battery, 6th Battalion, 84th
Artillery. He also spent time with B Battery, 1st Battalion,
27th Artillery. His military occupational specialties in
Vietnam were as a cannoneer and prime mover/driver.
The service medical records are without reference to
psychiatric complaints or abnormalities.
The veteran was hospitalized at a private facility in October
1987 on a voluntary first commitment from the county. He was
referred by another individual with a local mental health
center because of increasing hostility, verbal threats toward
his wife, obsessional thinking, and loose associations.
According to information, he had been decompensating for
about 2 months with a recent acceleration of deterioration.
Episodes of bizarre behavior were reported. According to
various sources, the symptoms manifested themselves about
7 years previously when he was laid off a construction job
and was unable to find work in California. The veteran lost
his home and a rather large income. He became increasingly
depressed and sad, with a fixed stare for hours. He
expressed paranoid ideas and claimed he was being watched by
people in the mountains. His wife described recurring
episodes in a cyclic pattern during the past 4 years, with
longer periods of agitation, disorganized behavior, and
thought disorder. About 4 years previously, he began to see
an individual at the Palo Alto VA medical facility in
California. It was noted he had served 19 months in combat
in Vietnam as an artillery gunner. The possibility of PTSD
was considered at that time. He was tried on various
medications. His first psychiatric hospitalization was from
June 1986 to July 1986 at another hospital. He was admitted
for bizarre behavior, anger, depression, insomnia, and
violent threats toward his wife. There was evidence of a
mild thought disorder and preoccupation with themes of
finding work. He was diagnosed as borderline personality and
adjustment disorder. The diagnosis during current
hospitalization was chronic paranoid schizophrenia, with
acute exacerbation.
He was again hospitalized at a state hospital on a voluntary
recommitment from June to August 1989. He was again referred
by the same psychologist with the local mental health center
due to a recurrent exacerbation of his bipolar disorder,
manic phase. Prior to admission, he had gone without
medications for about 1 month. This resulted in the
exacerbation of his chronic psychosis. The history given
during the hospitalization reflected that during the week
prior to admission he had made mention of potential violent
acts. It was noted that he also talked obsessively about his
Vietnam experiences. He was described as nonsensical in his
conversation. It was noted that following the 1987
hospitalization, he was referred to the Thompson Falls Mental
Health Center. In November 1988, he was seen on an
outpatient basis by a physician who diagnosed him as having a
manic bipolar disorder.
Communications of record from the veteran include a January
1990 statement in which he indicated that while in Vietnam he
recalled one occasion when he was supporting the 101st
Airborne and "we almost got overrun. We also lost a company
of 101 Airborne Rangers." He claimed that he also fired
support for the 25th Infantry on the Ho Chi Minh Trail. He
claimed the unit he was attached to traveled quite a bit, but
it was hard for him to remember all the places where they
were. He indicated he was in Saigon during the 1968 Tet
Offensive and helped to evacuate people out of the city. He
stated he could remember every morning when "they would call
in the body count and I guess that is what bothers me the
most."
Of record is a February 1990 communication from the
psychologist at the local mental health center where the
veteran had been receiving treatment since September 1987.
The individual stated it was his understanding the veteran
was treated in California for PTSD prior to his beginning
treatment at that facility. However, the individual added he
had no written confirmation of that. He stated that he
himself had treated the veteran, through a psychiatrist, for
a bipolar disorder.
Also of record is a statement from a Dr. Lovell, dated in
February 1990 in which he had reported he had seen the
veteran on several occasions between June 1987 and November
1989. He indicated the veteran had chronic depression.
In a September 1991 communication Dr. Lovell reported that he
first met the veteran in June 1987. The veteran had a
history of chronic depression for which he had been
hospitalized. The osteopath also noted that "he has post-
traumatic stress disorder." No elaboration was provided.
Received in 1992 were medical and lay communications
referring to treatment, evaluation, and observation of the
appellant probably in the late 1980's for various problems.
Notation was made, for instance, on one occasion in July 1989
of hospitalization for depression and episodes of psychotic
symptoms with a diagnosis at that time of a bipolar disorder.
Received in 1993 was a statement from the veteran in which he
recalled that while in Vietnam he was assigned as a member of
a mobile field artillery team which traveled extensively to
the Central Highlands and the Delta in Vietnam. He claimed
that he was in Saigon during the Tet Offensive. He stated
that because of the mobility of his unit and because of the
many years that had passed, it was very difficult for him to
recall specific times, dates, and places where events
occurred or the names of other people involved. He indicated
that no matter where anyone was stationed and no matter what
an individual's occupational specialty, it was "impossible to
truly feel safe anywhere, and as the Tet Offensive proved,
there really were no 'safe' places in Nam." He recalled that
on one occasion he was stationed in Cu Chi and the base camp
was hit with enemy mortar and rocket fire. He recalled one
specific incident when he was called upon to go out to the
storage dump to check on the ammunition and powder. He
claimed that as he was checking the dump, he drew some sniper
fire and the flashlight was shot from his hand. He stated he
was not injured physically, but he was "sure as scared as
hell when this happened." He referred to recollections of
another incident when an individual in the unit was killed
when an artillery piece he was firing misfired and blew him
up. He stated he was not certain of the exact date or place.
The veteran was accorded a psychological evaluation by VA in
February 1994. He stated that approximately one year of his
tour in Vietnam was in combat and that he was shot at and
rocketed and mortared on a regular basis. He did not
describe any particular sleep disorder, to include
nightmares. Intrusive thoughts did not seem to be prominent.
He related that he thought about Vietnam when the subject
came up. He was rather vague in describing the effects
Vietnam had had on him personally. He believed he was
getting a raw deal from VA because of the length of time it
was taking to process his claim. The psychological testing
resulted in a determination that his profile was usually
diagnostically descriptive of a bipolar disorder. One of the
lowest scales in the profile was the anxiety scale, a scale
which was most often elevated for anxiety disorders such as
PTSD. The psychologist stated that the PTSD scale was only
"marginally suggestive" of PTSD. His impression was that
while PTSD might be in the background, that disorder was not
a major contributor to the veteran's current emotional
difficulties.
The veteran was accorded a psychiatric examination for rating
purposes by VA in February 1994. The examiner stated that
the veteran's diagnosis seemed to be consistent with a
bipolar disorder in fair remission. Notation was made that a
diagnosis of PTSD had been made by another physician.
Subsequent medical evidence includes a report of VA treatment
of the veteran for alcohol dependence in November 1994.
Reference was made to the veteran having had a previous
history of a diagnosis of a bipolar disorder with symptoms
appearing to be in fair remission at the present time. Other
data reflected he had a previous psychiatric hospitalization
with a diagnosis of paranoid schizophrenia. Personality
assessment was consistent with a schizoid and paranoid trend
in his adjustment. He tended to be rather oversensitive,
rigid, and mistrustful of others. He also tended to
overutilize an overprojection of blame mechanism, and tended
to blame others for his misfortunes. It was indicated he
likely was quite uncomfortable in social situations. He also
likely tended to deal with his problems by avoiding them. He
appeared to have difficulties with his behavioral controls,
which were marked by low frustration tolerance and difficulty
delaying gratification.
The veteran was given Axis I diagnoses of alcohol dependence,
history of bipolar disorder, and rule out paranoid
schizophrenia. He was given an Axis II diagnosis of
personality disorder, not otherwise specified, with paranoid
and passive/aggressive features.
Received in December 1994 was a statement from the veteran in
which he referred to recollections of one incident in service
when he was stationed at Cu Chi and he was ordered to check
an ammunition supply. He claimed when he did so, he was shot
at and a flashlight was knocked out of his hand.
In a statement dated later in December 1994, the veteran
claimed that on several occasions in 1968 his unit was hit by
mortar, rocket, and small arms fire. He recalled that during
one of these attacks an individual was hit and had to be
medically evacuated. He stated he could not recall the name
of the individual.
Of record is a February 1995 statement from the Chief of the
Department of Psychiatry at the VARO in Fort Harrison. He
indicated that the veteran had been diagnosed in 1991 as
having PTSD and a bipolar disorder. He stated the veteran
"has all symptoms of PTSD." He noted the veteran had
attended a PTSD group and had reportedly recently received
documentation of his stressors in Vietnam, and situations.
Impressions were given of PTSD and bipolar disorder.
At a hearing at the RO in September 1996, it was indicated
that the VA physician who gave the veteran the diagnosis of
PTSD had passed away (Transcript, page 9). The veteran
stated that he could not be specific as to dates and times of
any of the incidents he reported as being stressful in
Vietnam. He stated he was always a member of B Battery,
6th Battalion, 84th Artillery while in Vietnam.
Submitted at the hearing were records from a Dr. Brooks.
These records included a report of private hospitalization in
June 1995 for a diagnosis of schizoaffective disorder,
depressed. The physician's records referred to history and
examination in January 1996. At that time the veteran
reported a long history of psychiatric illness. The
physician referred to old records he obtained when he saw the
veteran as an outpatient in December 1995 and indicated the
records revealed the veteran had been seen for the first time
as a patient by another physician in July 1988. History
given was of the veteran hearing voices, thinking he could
read other people minds, and thinking things on television
were referring to him. He also had a history of
noncompliance with medication and a history of alcohol abuse.
The physician accorded the veteran varying psychiatric
diagnoses, including PTSD. The last record from him was
dated in June 1996 and it referred to some increase in the
veteran's psychotic symptomatology. An assessment was made
of bipolar disorder with increased psychotic symptoms,
possibly aggravated by noncompliance with medication and
alcohol use.
The U. S. Armed Services Center for Research of Unit Records
submitted extracts of operational reports--lessons learned by
the 1st Battalion, 27th Artillery, the 41st Artillery Group
(the headquarters of the veteran's battalion) and I Field
Force Artillery (also the higher headquarters of the
veteran's battalion) for the time period he was in Vietnam.
The records indicate that various base camps, including one
at Cu Chi, came under frequent mortar and rocket fire. The
attacks were described as minor in nature, and as involving
small amounts ordnance and were said to be conducted more for
harassment purposes than for any other reason. The records
indicate that the 6th Battalion of the 84th Artillery was
located at An Khe for the period ending July 31, 1969.
The veteran was scheduled for a psychiatric examination by VA
in March 1999, but he "failed to report." No reason was
given. The Board's review of the record reflects that notice
of the examination was correctly sent to the address as
provided by the veteran as his address at the time of the
scheduled evaluation.
Pertinent Law and Regulations.
Service connection denotes many factors, but basically, it
means that the facts, as shown by the evidence establish that
a particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces, or if
preexisting such service, was aggravated therein.
38 U.S.C.A. § 1110. Such a determination requires a finding
of a current disability that is related to an injury or
disease incurred in service. Watson v. Brown,
4 Vet. App. 141, 143 (1992). In claims for PTSD, VA
regulation 38 C.F.R. § 3.304(f) (1999) is applicable. That
regulation states that service connection for PTSD requires
medical evidence establishing a clear diagnosis of the
condition, credible supporting evidence that the claimed
inservice stressor actually occurred, and a link, established
by medical evidence, between current symptomatology and the
claimed inservice stressor.
Prior to discussing the merits of the matter, the Board first
addresses the appellant's failure to report for a scheduled
examination requested by the Board in its March 1998 remand.
The record shows that the veteran was sent notice to report
for an examination at his last address of record. For
whatever reason, he failed to report. 38 C.F.R. § 3.655
(1999) states that: (a) General. When entitlement or
continued entitlement to a benefit cannot be established or
confirmed without a current VA examination or reexamination
and a claimant, without good cause, fails to report for such
examination or reexamination, action shall be taken in
accordance with paragraph (b) or (c) of this section as
appropriate. Examples of good cause include, but are not
limited to, the illness or hospitalization of the claimant,
death of an immediate family member, etc.
(b) Original or reopened claim or claim for increase. When a
claimant fails to report for an examination scheduled in
conjunction with an original compensation claim, the claim
shall be rated based on the evidence of record. When the
examination was scheduled in conjunction with any other
original claim...the claim shall be denied.
The Board finds that VA has more than adequately discharged
its obligation to attempt to provide the veteran with an
examination as requested by the Board in its remand.
Stegall v. Brown, 11 Vet. App. 268 (1998). The Board notes
that the Court has held the duty to assist is not a one-way
street, and that an individual cannot stand idle when the
duty is invoked by failing to provide important information
or otherwise failing to cooperate. Wood v. Derwinski,
1 Vet. App. 190 (1991) (affirmed on reconsideration,
1 Vet. App. 460 (1991)). In sum, the Board finds that the
claimant's violation of this obligation does not give rise to
any obligation for VA to do more than it has in this case.
The Board is therefore forced to rely on the evidence which
is of record. Turning to the merits of the claim, the
starting point for PTSD is a confirmed stressor. The
evidence which is of record includes documentation provided
by the U. S. Armed Services Center for Research of Unit
Records. The information provided is not confirmatory of the
veteran being exposed to combat experiences. The veteran has
been requested repeatedly to provide specific information
concerning alleged events claimed as "stressors," but his
responses have consistently been marked by vagueness and lack
of details making it difficult to verify. His vagueness and
lack of substantiating detail undermines the basic
credibility of his assertions. The Board notes that the
Court has held that for purposes of 38 U.S.C.A. § 1154(b),
"satisfactory evidence" means "credible evidence." Caluza v.
Brown, 7 Vet. App. 498, 510 (1995). The Court has further
held that to comply with the statutory requirements of
38 U.S.C.A. § 7104(d) to provide "reasons or bases" for its
decisions, the Board must analyze the credibility and
probative value of the evidence, account for the evidence
which it finds to be unpersuasive, and provide the reasons
for its rejection of any material evidence favorable to the
veteran. Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v.
Brown, 9 Vet. App. 425 (1996). The Board has "the authority
to discount the weight and probity of evidence in the light
of its own inherent characteristics and its relationship to
other items of evidence." Madden v. Brown, 125 F.3d 1477,
1481 (Fed. Cir. 1997).
A review of the record shows that the veteran made no
references to reexperiencing any traumatic events in service
for a number of years following service discharge. The first
few communications from him of record referred only to one
incident when he reported having a flashlight shot out of his
hands while he was attempting to go out to a storage dump to
check on the ammunition and powder. In his 1993
communication he also referred to recalling an incident when
an individual in his unit was killed by an artillery piece
which misfired. However, there is no confirmation of this in
the records provided by the Center for Research of Unit
Records.
In Cohen v. Brown, 10 Vet. App. 128 (1997), it was indicated
that if it was determined that a veteran did not engage in
combat with the enemy, or the claimed stressor was not
related to combat, the veteran's lay testimony alone would
not be enough to establish the occurrence of an alleged
stressor. In such cases, the record had to contain service
records or other corroborative evidence substantiating or
verifying the veteran's testimony or statements as to the
occurrence of the claimed stressor or stressors. While the
record does reflect that a VA physician gave the diagnosis of
PTSD in a 1995 communication, an opinion by a mental health
professional based on a post service examination of the
veteran cannot be used to establish the occurrence of a
stressor. Cohen, supra. PTSD has indeed been diagnosed on
more than one occasion in the past, but the diagnoses have
been given based on history reported to the examiners by the
veteran, a history which is not substantiated by the evidence
of record. There is no award or decoration or any other
indicator in the record that would constitute prima facie
confirmation that the veteran personally "engaged in combat
with the enemy." There is no service department
documentation that he did so. His awards and decorations
only show that he served in Vietnam. While the areas of
combat in Vietnam were fluid, not everyone who served in
Vietnam engaged in combat with the enemy. VA is charged with
assessing the credibility and weight to be given to the
evidence (see Wood v. Derwinski, 1 Vet. App. 190 (1991)), and
it is not obligated to accept medical opinions premised on
the veteran's recitation of medical history. See Godfrey v.
Brown, 8 Vet. App. 113 (1995).
The preponderance of the evidence of record does not relate
the adequate symptomatology and/or the sufficiency of any
stressors to a diagnosis of PTSD. Because the veteran has
failed to respond to the request to report for a VA
examination to confirm a diagnosis of PTSD, the Board has no
choice at this time but to deny the claim based on the
evidence of record. As there is no clear, unequivocal,
competent diagnosis of PTSD, there is no need for the Board
to get into further discussions of verified, inservice
stressors or a causal nexus in a claim for service connection
for PTSD.
As noted above, the veteran has failed to report for a
scheduled examination. He has been informed of the failure
in the supplemental statement of the case, and has not
indicated a willingness to report. Moreover, no reason for
the failure to report has been provided.
ORDER
Entitlement to service connection for PTSD is denied.
James R. Siegel
Acting Member, Board of Veterans' Appeals